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tv   Discussion Focuses on Access to the Courts  CSPAN  November 7, 2016 9:00am-10:31am EST

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mcmorris rodgers, the nfib and all the people that represent main street and that's i want to serve. >> i want to thank you both for being you. i'm sorry it flies by. will have to. will have to entity. angie craig, jason lewis, thank you both for coming in and having this conversation with us the city. up next were going to talk to minnesota's third congressional district candidates as well. we will take a look of some issues minnesota voters are saying matter most to them. >> election night on c-span2 watch the results and be part of a national conversation about the outcome. beyond location of family plan and overcome election night headquarters and watch a victory and concession speeches in peace in the house and governors races start about 8 p.m. eastern and throughout the following 24 hours. watch live on c-span and on demand at or listen to our live coverage using the free c-span radio app. >> now federal appellate
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attorneys discuss whether federal courts will reverse recent rulings that made it more difficult for individuals to sue in court. cohosted by the georgetown university law center and the constitutional accountability center, this is one hour 30 minutes. >> hello, everyone. thank you so much for being here at the georgetown law school supreme court institute. my name is elizabeth wydra and oppression of the constitutional accountability center, a nonprofit public interest law firm, think tank and action center dedicated to the progressive promise of united states constitution. cac is delighted to be cohosting this event tonight with the supreme court institute and thanks to the institute director. we have a great event here tonight to talk about the important questions of the future of access to courts that as many of you know, while this
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room is a mock courtroom of the supreme court, when you stand outside d.c. and described over the arch of the door equal justice under law. but for many people their search for the justice ends on the steps of the courthouse, because the courthouse doors have been closed to them through restrictive judicial doctrines. they don't get their day in court. they don't get to fight to vindicate their rights and fight against legal wrongs. some people think this function creates a more effective judiciary. certainly the roberts court as it existed before the passing of justice scalia had a narrow view of judicial power and closed the courthouse doors to litigants who are seeking to hold corporations accountable, prevent harm to the environment, hold accountable police misconduct, and stop the federal government's system of warrantless wiretapping, to name
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just a few examples of cases that were thwarted by the roberts court in recent years. cac, my organization, has a different view and we are releasing a piece of scholarship today that tells a different story focusing on how the constitution's framers created an independent federal judiciary and charged it with responsibility of enforcing the constitution's guarantees. given the judicial branch in article iii, broad power to redress legal wrongs, to ensure that for every legal right there is a remedy for the violation of that right. this narrative that we are releasing entitled the keystone of the arch, the text and history of article iii, and the constitution's promise of access to course is available outside the room tonight or on cac's website we have a fantastic group of experts, supreme court advocates
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and legal academic experts to walk us through these important issues or they will be presenting a diverse opinion, said of opinions on these issues and we're very grateful to have them to talk about these issues as a legal matter, and also to talk about the possible direction of the supreme court in a post scalia era. us and, of course, that the then eventually decide to do its job and come from someone to the vacant supreme court seat. to lead us in that discussion i am delighted to introduce amanda frost, tonight's moderate. amanda is a professor of law at american university washington college of law where she writes and teaches in the fields of constitutional law, federal courts in jurisdiction, immigration law and judicial ethics. she was also a litigator at public citizen for some years so we are very grateful to have her expertise both as an academic and a litigator. i will turn it over to amanda frost.
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>> thank you, elizabeth. and thanks to the supreme court institute the supreme court institute at the constitutional accountability center. we are here today to discuss access to course and we will do so through the lens of two different events. one is the supreme court case, wells fargo versus city of miami, case the concerns the question of whether the city of miami had standing to challenge the banks alleged predatory lending practices in that city under the fair housing act. all five of the panelists today have offered amicus briefs on that question at all of you still be sharing with you. and decades will be argued send. it's coming up on tuesday november 8, a day in which not else much is happening. lots of newspaper coverage on november 9th coach bobby not but that's okay. we will enlighten you about here today. were also here to discuss access to course more generally and to focus on the terrific new report authored by david gans, the keystone of the arch on the
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constitution promise access to courts. will start up a talk about the supreme court case and then move on and talk more generally about these access to core issues. i'm going to give a brief introduction to our panelists, their bios are long and they are very accomplished but i will in the interest of time shortened demo. steven bradbury as a litigation partner at dechert, an expense that will advocate, served as principal deputy assistant attorney general and the is department of justice when he headed the office of legal counsel. he co-authored the brief on behalf of the cato institute and on behalf of petitioner wells fargo and bank of america. david gans is director of the human rights civil rights and citizenship program at the constitutional accountability center. he co-authored a book on religious liberties and also authored the report we will be discussing today. david is one of the authors of the brief on behalf of the constitutional accountability center on behalf of respondents city of miami.
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-- specialize in supreme court and appellate practice in many different areas of law or he also worked as senior litigation comes after consumer financial protection bureau and he has co-authored a brief on behalf of the national sensation of counties, the national league of cities, u.s. conference of mayors and other municipal managers and lawyers. as amicus curiae in support of respondent city of miami. ajmel quereshi as assistant counsel of the naacp legal defense fund and he also before that work at the aclu's national prison project. he is one of the office of the brief on behalf of the naacp legal defense and education fund in support of the city of miami. and jeffrey wall is coed of sullivan & cromwell where he's argued cases in the supreme court and many of our courts. he worked in the office of the solicitor general and his
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co-authored a brief on behalf of the chamber of commerce and the property casualty insurers of america in support of petitioner bank of america and wells fargo. so to begin just for those in the odd instrument of a family with the case, i've asked first steven bradbury to give a brief overview of the case and respond his position. although the purpose of his remarks is not to be an advocate, it's just nature as it understands understands what the case is about. and i've asked ajmel to fill in any gaps or perspectives he'd like to from the respondent side, and then we will start the discussion. >> thanks, amanda. so the case is wells fargo and bank of america versus city of miami. the respondent city of miami was the plaintiff, is the plaintiff in the case your this city is bring an action for damages under the fair housing act which is title eight of the civil rights laws. this city is claiming that the
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petitioners, the banks, engaged in discriminatory lending practices in issuing mortgages to individuals in miami. and miami is claimed as a result of the discriminatory lending practices, these mortgages were kind of setup to fail. there were lots of foreclosures as a result, and in turn as a result of foreclosures on these discriminatory loans, the city suffered in the form of reduced tax base, so reduced tax revenues to the city of miami, and also the city argues that as a result of increased foreclosure rates there was more urban blight in miami. and in order to combat the urban blight, the city of miami had to incur increased fiscal obligations to increase budgetary expenditures.
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so the city is suing these big banks claiming damages to compensate the city for lost tax revenues and increased fiscal obligations, essentially seeking hundreds of millions if not billions of dollars in the form of these fiscal and tax harms that the city claims that it suffered a. and by the way, there are a number of suits like this ever been brought by cities and counties across the country under a similar theory against different, large financial institutions. the banks move to dismiss claiming that the city had failed to state a claim under the fair housing act, that this wasn't the type of claim that congress intended to provide action for damages. the provision at issue says that any person aggrieved by a violation of the fair housing act can sue for damages for the harm that they suffered as a
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result. the respondent, the petitioners, the banks say wait a minute, this isn't the type of claim, it's too remote, it's too attenuated, and claims for things like tax losses and fiscal obligations of the city are not the kinds of harm that congress intended to provide compensation for under the fair housing act. it's not closely related to actual instances of discrimination. the city ultimately prevailed in the 11th circuit below. the court of appeals relied on some supreme court cases early on from some years ago that basically said the standing to bring one of these suits under the fair housing act is as broad as article iii standing. so anybody who can claim any kind of injury as fairly traceable to an alleged violation could bring a suit. and so based on that, they allowed the case to go forward.
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the arguments in the supreme court now are based on some more recent decisions, including two decisions authored by justice scalia, decision called lexmark international and the decision called thompson. and under these decisions, the more contemporary court has made clear, and by the way, these were unanimous decisions, the contemporary court has made clear that every cause of action created by congress in a statute like this cause of action for damages under the fair housing act has itself a substantive standing requirement built into the cause of action in the statute that requires the plaintiff to plead that its claim falls within the zone of interest protected by the statute, and to plead that there is probable cause that it's injury was a direct proximate result of the violation of the statute that's claimed.
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and so the issue before the court is whether those more recent decisions and those doctrines of zone of interest and probable cause requirements to bring a statutory cause of action preclude the kind of claim that city of miami is bringing. >> great, thank you. and ajmel, you want to add to that or get a different perspective? >> that's an excellent summary and i would have probably agree with 99% of the. i think like to add a few points just in terms of framing. at the larger context for this case. as stephen mentioned, the heart of the actions at issue in this case have to do with predatory lending. and as ldf details in the brief, there's a long history of discrimination in terms of housing, housing discrimination against african-americans within the united states. so i think for the city and certainly from lds perspective,
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this case comes within the larger context of housing discrimination against african-americans and the predatory lending that occurred in the lead up to and during the great recession, beginning in 2007, really was an extension of his long history of predatory lending and housing discrimination. so that's the ultimate backdrop that i think is important to recognize beyond the actual illegal summary of the issues in the case. the only things with regards to the actual legal summary that i would add is that this is a disparate impact case under the fair housing act. it's, actually the heart of the issue before the court. as many of you know last year the supreme court in texas versus icp affirmed disparate impact under the fair housing act, tremendously important decision for civil rights lawyers across the country, as
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lost and many others now in 2001 the courts in alexander v. sandoval said there was no private right of action under title vi. that's a public accommodations provision of us of rights act and while disparate impact still exists under title vii, the employment discrimination provision disparate impact is greatly endangered species or portion of the law, and so is very exciting and important that the court last to recognize that disparate impact continued to exist under the civil rights act. so this wine of cases not only builds upon this the line -- housing discrimination, it also builds upon the supreme court decision last year recognizing disparate impact and seeks redress for violations of the law that have a disparate impact on african-americans and other communities of color within the
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united states. the final thing, or two final points i would add is that this case is unlike a lot of cases that come before the court in that it does not necessarily involve a circuit split. as many of you know a circuit split is a situation which there's a split between the circuits in how they ruled, as a particular piece of the law should be interpreted. this case the thought of a circuit split. involves a series of decisions dating back to 1972, having to do with how the term agree the person is interpreted under the fair housing act. so it is a deep concern for civil rights lawyers that the court did take up this case. i think that's the larger context i would add, but i think the legal summary that was provided was excellent, and i agree with it. >> my next question primarily for those who offered briefs on
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the respondent side is, and ajmel, your briefs it would be absurd to exclude miami from the definition of an aggrieved person. but then petitioners position is if that's true, isn't to every single person tangentially harmed by the predatory lending could sue? could a neighbor sue for the devaluation of the property box at the local shop, the butchers to because now there are fewer people come in the shop because predatory lending led to foreclosures leading to fewer people living in the neighborhood? it does extend of the potential of the could sue to anyone can tangentially harmed. it would mean almost the world. is there any limit? how do you respond to that critique? >> so there's two ways to think about that. the first is that, actually i'm going to say there are three ways to think about it. so as many of the law students in the room now, this is going to default pretty quickly into a line drawing exercise which many of you know from the first year
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of classes is the thing that all law students love this line drawing exercises, a finding that precise line. ultimately we don't have to in this case decide exactly where that line is. ultimately, we have to decide specifically why the plaintiffs are plaintiffs like the planets in this case ultimately have standing. so we don't need to ultimately resolve whether or not a lawnmower would be the type of person who no longer could mow lawns because no one was living in that house would have a claim under the fair housing act. that's not the question before the court. the question before the court really is whether or nazis have a claim under the fair housing act for the type of damages that stevensville adequately described. along that point i think that there is something special about cities that make them different from a lawnmower, for example, or as the thompson court talked
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about, the simple analogy that justice scalia relied upon in thompson had to do with a shareholder, whether or not a shareholder in the company could come forward and suit about an employment decision that the company had made. i think there's something more special about the relationship the city has between it and its residents and a shareholder has between itself and the company. a shareholder by himself can we all own 100 stocks of apple here or there. that doesn't establish a special relationship between me and steve jobs would he was alive. it just needs to have a financial interest in the case. i would argue the relationship of a city to its residents is much more, a city represents the interests of the people who live in its community. the city represents the african-american committees that make up the city. i think it's a different to a degree to an extent that a shareholder or a lawnmower is not. finally, there's this question of getting back to the line
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drawing point. as stephen emphasized there are multiple legal questions at issue in the case. first there's the question of whether or not injury extends to the full extent of article iii. but even if it doesn't, which it did not in thompson which was a title vii case importantly, not a title viii case, even though the court found in thompson episode of interest was applicable, that is your the right to bring a claim if you claim falls within the zone of interest of for the statute was originally intended to protect. the court still found that the plaintiffs in thompson have a case. so even if the court ruled on the first question of whether, that there is not a claim, an aggrieved person does extend to everybody who ha hasn't articlei injury, the city can still prevail if it falls within the zone of interests of who was originally intended the be
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protected by the fair housing act. i'm sure cpac given the nature of his brief on behalf of the cities and counties can speak adequately to the relationship of the city to the fair housing act. >> i'd like either stephen r. jeffrey to respond to that point, that the city is special and different and has a unique status and is therefore not opening the door to every possible tangentially harmed litigant even if they're allowed to go forward in this lawsuit. >> all right. look, the court of appeals in the case held that you've got standing under the fair housing act up to the limits of article iii, which uses everybody that suffered an injury in fact which includes the butcher, the local shop owner, the handyman who used to do work at the foreclosed property, and so on down the line. i don't think anyone would dispute that all of those folks have suffered an injury in fact
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for article iii purposes. so the court granted the case and i think ajmel and others have made sort of heroic efforts not to defend with the court of appeals held but to say look, among that class of a dozen injured in fact, cities are special. agree that sullivan & cromwell filed for the chamber didn't focufocus on that particular sio want to speak to them a lot of depth. i think what i would say and maybe steve and deepak will want to talk about is i think the city might be special for some purposes, for instance, various immunities, there is dawkins in the lower cities and municipalities are special. but i think it's a little difficult to figure out why that should be true here. it's certainly not true from it into perspective, which is to say there are others in between the foreclosed property and the city as a causal matter who suffer an injury a long the way
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because, keep in mind that steve laid out earlier, the causal chain here is that there were foreclosures and that in turn both drove up the city services and that force the city to engage in extra social spending the there are lots of other people who are sort of injured along the causal chain that led to what the city says were a diminished tax base and increased expenditures on its part. it's hard to forget what terms of the causal chain you should think the city is special. it's not i think the true that there's been any lack of either harvested for government enforcement actions directly under the fair housing act. it's a matter of private damages, i think it's difficult to figure out why you would think that cities and municipalities would occupy a privileged place but i respect the efforts of respondents have made to try to defend not for
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the court of appeals held but a far more limited holding that would say you don't need to go so far, you can just talk about cities. but it's not clear to me what the sort of textual or historical basis is for that in the for housing act. >> maybe i'll add a point or two and then trying to, you can jump in. the city's claim here is vast and undifferentiated entrance of the city's interest in the alleged violations. really the question you need to ask i think is did congress and the fair housing act intend to give a cause of action to the electric company, the landlord, the shopkeepers in the area, all those people who may be economically impacted by increased foreclosures. and i think the plain answer would be no. that's the on the scope of
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interest in remedying instances of discrimination, predatory our disparate impact, whatever the scope is of the substantive violation. here's a claim by the city is far broader than that. it's essentially a claim for recoupment of lost tax revenues and budget shortfalls that the city has faced because of the cost implications of urban blight and increase foreclosure rates. was it really congress purpose to enable cities to get back most tax revenues, to fill the budget shortfalls through litigation under this civil rights law? was that the purpose of the law when it was enacted? i think it's pretty clear not, in my mind. there are plenty, if these were instances of disparate impact lending in violation of the statute or discriminatory lending, predatory in some i'm awful way, there would be plenty
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of plaintiffs well situated to seek redress for the harm to them from that sort of violation. rather than an overarching, all-encompassing claim for fiscal loss and lost tax revenues from a huge and is apparently seeking a very general, undifferentiated way hundreds of millions of dollars in damages on this theory. the other aspect of it is the probable causation, proximate causation aspect of it. there are so many potential causative factors intervening in between these alleged instances of discriminatory lending or predatory lending, the foreclosures, the foreclosure rates and the ultimate impact on tax base and don't fiscal shortfall of the city from urban blight. there are so many potential causes of instances of urban
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blight that the impact the city's finances, et cetera. and in this case the cities experts had super complicated economic regression analyses to try to identify that portion of the loss that is attributable to the alleged lending practices. is that the kind of hyper technical, overly complicated litigation strategy that congress intended under our civil rights laws? i think it's a misuse of these statutes, if you think about it in those terms, it's easy to see i think why it should be an easy case that these claims don't fall within the zone of interest and don't satisfy the proximate causation requirement. the last thing i will say is if you look at the respondents brigham city of miami's brief on the merits, they argue zone of interest and proximate causation.
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the first question that ajmel described, they don't really seem to continue to argue for the full extent of article iii standing under the statute. >> deepak, could you wait in on the question of even if they are the son of interest, did congress meant to be brought to speak with steve said a lot i disagree with. >> great. >> i think this is one of the cases where the legal questions, the sort technical legal question still what i want to case is about. the technical legal question, the first question is this question that i think, the answer is almost trivial, whether not there's a zone of interest does. the court of appeals applied older precedents said that the standing extended to the full extent of article iii but that's just about the court is going to see. so the real question is not, is the zone of interest is? our cities the kind of plane as we will under the fair housing
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act? or better, did congress wanted suing under the fair housing a act. and in the second question, the proximate cause question, the question is really whether there's a proximate cause requirement. it's how the court is going to place some limits on these kinds of cases because i do think you look at the texas for housing case, that was a really surprising decision to a lot of is because justice kennedy essentially i think flipped his vote. remember that was the third time the issue is going to the court, civil rights advocates kept on trying to prevent the court from going to the court. when it finally got to the court justice kennedy join a majority holding that disparate impact would exist but said, had some, set some limits because i think he's concerned about where it leads. ..
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american cities were on fire and there were riots and law was not passed simply to address individual cases of discrimination or intentional discrimination but rather this problem that in the view of congress we were going to have two americas, widespread segregation. cities were at the heart of that. then a decade goes by, there's a case gladstone, a village in illinois brings lawsuit under the fair housing act and similar in some ways, the harm that they are claiming, miami is claiming. they're claiming that they are injured because of significant
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impact in property value diminishing tax base, threatening the ability to bare the costs of local government and to provide services. that's a supreme court holding and the supreme court that that injury, the claim by the city was sufficient to confer standing for the city under the fair housing act. that's 1979. another decade goes by. it establishes a single mechanism for parties to sue under the fair housing act and this is a quote, agreed to adopt existing law and reaffirm the broad holding of floodstone. why are we even here n. the supreme court has already effectively decided this question. decided that cities can sue under the fair housing act and sue for these kinds of injuries. so i don't think that's a close question. i think unless the supreme court wants to overrule gladstone, wants to overrule heavens which
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is even more out there, i just -- i think it's unlikely that after what happened in texas fair housing that that's where the court is going to go. i think the much tougher question is, what kind of limits the court is going to place on these cases and what kind of line drawing the court is going to do. but if you look at gladstone, we are talking about access to justice and how things have changed, you look at the case, complaint was conclusory. yet that was fine. whereas these complaints as steve said, the city of miami, baltimore had a similar case, they have regression analysis that tries to isolate the variables, they're essentially proving their whole case just to -- at the pleading stage. and so, you know, i think the court may want to place limit on
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the cases but the cities have done a terrific job of isolating variables. i think it might be hard. >> please respond. >> i think what you just said with the notion that the court will place limits and will apply zone of interest and approximate causation. tbladstone case did not apply the zone of interest, the gladstone stage was earlier line of cases decades ago that said the standing to sue under these provisions is as broad as article 3. it was article 3 standing question. was there a minimum showing or allegation of injury and causation, the modern courts doctrine article 3 standing only requires that the injury be fairly traceable to the alleged
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violation and not that it be the direct result and i think the observation of justice powell how the villages harm to tax base, et cetera, that it was claiming, which maybe an article 3 injury, in fact, was the direct result. that's a factual observation, i think, not a legal holding and it can't really be a legal holding because it's not an element of article 3 standing. the court has an open field here to draw a line. but i will also say in the gladstone case there were other plaintiffs and testers who were claiming violation, the right to sue that the court recognized and also neighbors who lived in the same housing projects or same developments who sought the benefits of increased diversity, et cetera, who were held
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outstanding and, of course, under article 3 standing, if only one of the plaintiffs in the group have standing, they all have standing, but not the case with this kind of statutory standing analysis. >> yes. >> i mean, i think we have to recognize the way it is housing act is pretty distinctive. we have to respect the congressional plan. i think it goes along with what you have to say. one you have the text, any person that claims to be been injured by discriminatory, we need to respect that. the court's cases say pretty much that means what it says. we can kind of knock off who is allowed with not only direct victims of housing discrimination which are the plaintiffs but you have a host of individuals who are indirectly injured by discrimination, that includes residents of the community both
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white and minority and that includes fair housing groups, resources have to be towards the gel and it's also including cities. you have the individual who is fired in some ways and has impetus to go to court, in many cases in the housing situation, you're searching for housing and you may be a victim of discrimination and you may not have the wherewithal while you're lawsuit with house discrimination and the law recognizes we rely over and over again on indirect discrimination to bring the suits and that was the judgment of congress in 1968, in the wake of dr. king and when the current commission talked about two americans, 20 years later when congress revisited this, they wanted to
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have more private enforcements. there were concerns raised by groups, you need to cut back on the standing that it had been affirmed by the court in the series of cases and the court ratified it and you can look at kennedy's opinion. he kind of pays very close attention to the fact that the court looked at decisions that didn't come down. those were just decisions in lowered courts. here we have a line of decisions delivered by the supreme court that congress very explicitly ratifies. congress made a considered decision and, i think, the argument that we can sort of supplant is violating the court's rule. >> what i would like to do now not leaving this case completely at all. we will come back to it, i would
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like to wide tennessee lens tiden the lens and to put it concisely. the supreme court has gone off track and prevented people from getting into court that the framers, founding fathers intended to be able to sue in order to keep the federal state governments in line as well as preventing people to get in the courts that congress wanted to be there. why is the court choosing to narrow itself and it seems that we have the problem of institutions grandizing their power, no, we don't have the power to hear and decide this? >> sure, so let me -- there are
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two reports and i will talk no detail. it's kind of a long report that tells a very long story but let me kind of be concise. one is that when we look at article 3 it gives -- broad powers to enforce the constitutional and maintain supremacy of federal laws in case that is come forward. we had no court system and had government and no way to go to court to enforce federal laws. the law is dead letter and one of the problems, madison talked about states were lawless and no one to check them and the framers in philadelphia debated at length how are we going to check the states, should we use the executives, should we have
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federal and the answer kind of kept coming back to the judicial provided by the court. there are kind of three big article 3 ideas that the report talks about. one is constitutional check. the typical story we learn in law school, judicial review was invented, but you can go kind of a little bit earlier in time to john marshal and the ratifying conventions where he says to what will you look for a protection from infringement of the constitution if you will not give it to the judiciary. and the key point is the checking function that the court provides. that is the role of the courts in our system of separation of powers. second, in and this links up to the miami cases, the idea of what i call the coach sensitiveness, three courts were critical to enforcing federal rights. that was the lesson of the
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confederation and the idea was to create a judiciary that had power to enforce federal law to congress. whatever congress created, the federal courts could enforce and this was discontinued at great length both in philadelphia and in the federalist papers and debate. and the framers viewed that going to the courts, that was a natural means of enforcing laws and beginning in the first congress, the framers and their successors adopted a whole host of federal laws and adopted some that we associate with private rights. we have the first copy right act passed, the first instance where congress allowed statutory damages which today are sometimes debate but they also created public actions, investing individuals the right to sue that in many ways are certainly precur sores of today's citizens under
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environmental laws that the supreme court is often looked quite sceptically towards. the last point is linkage between rights and remedies. is viewed in some of the very early famous marshal acts to court cases. i believe history is important because we have seen part since the court move and the question is why, some of it is a backlash, i think, to the warren court to keep out court some cases that the courts had moved to the left. so i think the report talks
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about a very important case that made it harder to sue for exclusionary zoning. there's been extremely important case in the 80's called lions where a victim of the choke hold isn't allowed to sue for injunctive relief. that's one of the reasons why we see in the present days of choke-hold, the court sort of said, we are not going to be involved. we are not going to stop that kind of police abuse. so there's -- one there's a -- in the court to cut off enforcement of basic guaranties of minorities and others. i think scalia is a big part of the story. incredibly influential in our courts. he writes, the very famous
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lecture in mid 80's and influences the court and he joins the court and plays a huge role, justice scalia is very skeptical about -- about citizen suits and he -- he views these are cases that are shouldn't be really in the court system, these are -- these are really matters that should be for the executive branch and he writes, you know, sort of a famous that for the first time in history, that congress provided isen constitutional until the reports makes it goes back to the idea that the extensive prin killle and the federal court should be allow today enforce it and we have this history of the kind of
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public actions that are the precursors. there's a vision of separation of powers and hostility to some of the ways the way court moves the law. we see some of the things conversation that started with scalia was the modern day rulings, the roberts court again has -- has had a number of cases that are limited scalia sort of campaign against but they've also been cases that have continued that thread. you know, we have the clapper case, you know, which takes a very narrow view of standing. unless you can show that you knew with acertainty that you were going to be wiretapped, you
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know, unless you can show that you're out of court. even with snowden's disclosures with at the time were only a couple of weeks away, it's not clear that that standard could have been met and disabled the critical constitutional check and the court talks about standing as a matter of separation of powers. when they talk about it, they view it as keeping the courts out of the other branches of government. there are some cases where that's a concern. courts were checked when they were on constitutional rights. >> we also could, of course, talk about the approach to the arbitration cases which steve
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pack has litigated. jeffrey, i want to follow up on something that you said in the e-mail. when we talk about access to courts, we should be careful to balance the cause of bringing cases to court, the social cost and the benefits of not having everything go to court. maybe that's partly what's at stake here so i wanted to see if you can expand on the interesting comment? >> look n some ways it's a little odd to talk about access to courts as if it were a crisis. litigation is blooming, alive and well. if anything, the federal court system is squeezed to the seems at handling the amount of litigation that is at least on a lot of courts dockets, so i think we can talk about whether decisions like clapper have limited plaintiffs in particular areas, but i think to say that the roberts before that, the ability to come into the court for a wide swath of plaintiffs
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in various areas of the law doesn't capture the reality of the federal legal landscape and i think too as you say, amanda, the bank of america and the wells fargo cases are pretty good example. access to court is a social good and in order to talk about how much of it you should have, i think you've got to talk about not in some macro sense but in a more micro sense within a particular statutory scheme how many people are already suing, what incentives is that provide to go deter unlawful behavior and what do we trade off if we expand the set of plaintiffs who can come into the court. it is a case about limits and do you take the petitioner's view that you should limit the number of suits to people who are really claiming a pretty direct race-based injury or to you allow a larger set of people to
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sue but through causation and ore doctrines you try tow as inclusive communities put some limits on it. and i think he's right that the way the court comes out on that probably is going to be informed by a a judgment about what the various trade-offs are and how many suits you want and it seems to me that's the trade-off you to make and there's a lurking social policy question in the fair housing act cases just to say that the more you increase the cost of doing business in these underserved communities, the more you will deter large financial institutions from expending mortgages or other types of financial products to people who live and work in some of these underserved communities and you can debate the extent to which you think allowing cities to seek the kind of lawyers damages will deter banks from loaning and these communities or it won't but that is a trade-off
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and i think we have to talk about it when we sort of talk about access to the courts. i tbeses my question for david and it's an excellent report, it's obviously a substantial undertaking, it's a very valuable contribution and encouraging you all of you to read it. the question that i came away with and i really want to get david's thoughts on it, look, there are lots of doctrines that keep you from getting your day in court. absolute and qualified immunity, subject matter, personal jurisdiction, all the rest, there are -- you know, a list as long as my arm of documents that keep you in federal court and there's broad agreement on many of those, justice ginsburg wrote the decision, the liberal wing by the court joined by justice kennedy that found the political question.
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and so in a lot of the cases it's not the conservatives narrowing access to the courts and there's pretty broad agreement in even a lot of standing cases. 7 to 2. luhan was 7 to 2. adkins, 6 to 3. it seems to me that there's pretty broad agreement across the ideological spectrum in a lot of the doctrines that limit access to the courts for one reason or another and i guess z what it sort of left me wondering is whether we are painting two ideological picture by not looking at sort of a whole -- the whole context of the thing. >> so let me -- [laughter] >> you said a lot and let me try and respond. so one, and the report makes this clear, you know, it's broad but by no means unlimited and so
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the political question example is something that the framers, you know, talked about. there were debates, you know, at that time and there was, you know, a very famous, you know, again we go back to john marshal in 1800 when he's been around the fire, chief justice, a huge debate what's known as the robbin's affair which involved extradition and an amendment to say, you know, the executive interfered with independents of the court and marshaled lays out, you know, a very sort of well convincing explanation that sort of talks about limits and so, you know, extradition is one where there isn't a case in which the constitution talks about a case and something that the constitutional system leads,
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so the example of -- that's baked into the framer's understanding. so, again, this is a vision of broad access to courts, you know, obviously limits on jurisdiction was also something that the framers and the early congresses attended to and have been kind of a principle that goes back. the idea isn't there can be no limits on jurisdiction or anything, that's sort of -- we have documents but those aren't about jurisdiction, those are postponing, at the end of the day, the court will, you know, will sort of return and weigh into the case maybe when it's
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heard and the meaning of state law in terms of whether -- the area of standing -- there are areas where there's some degree of agreement so you could think of taxpayer standing, generally, i think, outside of the area of church state cases where it's sharply divided. there's general agreements that it should be -- that most taxpayer suits won't get into court. you can look at the cuno case that roberts and ginsburg said, i agree with you here, but i part company with a long line of cases and there's some areas where -- where -- there's some overlap on the breadth on the
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power of court. luhan was 7-2. some didn't agree with scalia and the court has come back to it and continued to split and they produce an opinion but with eight justices they weren't able to move the law really any further than the case and i think those issues will continue to come back and, you know, perhaps we will have the nine justice court who can weigh in and resolve. it seems like spokio was -- was from the perspective of litigants, missed opportunity to set it will case book. i say we won which is a sign that the court hasn't really -- so there maybe some areas of agreement. we have a court that's still very sharply divided with conservatives trying to close the courthouse doors.
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again, one of the big areas is not just when it comes to the constitution but a whole host of statutory issues, arbitration, we have pleading rules. there are a whole host of areas, we also want to talk about -- >> could we stick to standing, though, for a minute? >> yeah. right. the claim was that there was general consensus and my point is that this is an area that the court has and continues to be ideological. >> yeah. >> i think there are fundamental disagreements between jeff and i in terms of how we view litigation and the courts and that's to be expected. fundamentally, part of this is a
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resource question, right? there are really talented litigators out there doing these types of cases who do the type of work that depack was talking about. they get an expert, they spend the tens of thousands of dollars that are required to get an expert. they do the years and years of research before they file a comp plain. they file a complaint very long and includes several details, but the reality is that not everybody has the time or the resources or the man power to do that type of work and preparation for a case. i mean, there's only, to pat us on the back and my colleagues at ldf on the back, there's only so many ldf's and so many lawyers at the department of justice or at hud. the reality is just in terms of sheer numbers, there's cases out there, we cannot take. i mean, you know, we certainly work as hard as we possibly can but there are cases that we cannot take or people that do
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not have the money or resources to bring the type of case that, you know, ldf and the lsu and others bring all of the time. i think that's the larger context for the case. yes, there are successful cases out there, but there are also, i think, ldf would believe and several others belief that there are tons of cases out there that we would like to bring and others should bring but can't be brought because there just aren't resources to bring them. in a lot of the cases, there are claims that, you know, don't have experts behind them and those are often the types of claims that are having the door shut on them. claims where there's a real wrong, there is a real impact and there is a real harm, but, you know, simply in terms of resources, you know, it's not as well as a 90-page complaint. that's the first point i really wanted to make to provide this
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larger context for that. the second, i wanted to respond to something that jeff said earlier about successful cases alleging a violations related to predatory lending. certainly i'm not going to deny that there have been successful settlements with the government, government has had some success with the predatory lenders and holding them accountable. but, again, there are limitations to what the government does and the types of cases that they take on. work that ldf and the aclu does is complementary and not repetitive of what the government does. there are cases out there that the government just can't take in terms of resource and also there's a fundamental difference in the way that ldf and other organizations like us do our work. i mean, we are in the community, we are talking to the clients, we are talking to community organizations, we are -- living and breathing and talking to the
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actual victims in the communities and there's something to be said about having their voice heard and having the voice be part of the litigation, and so i wanted to say that there has been some success holding predatory lenders accountable and for the private plaintiffs there has not been successful and there's a variety of reasons why we believe that private plaintiffs have not been successful. of course, and this goes to the larger fundamental access to justice issues that we are talking about, the supreme court decision to wal-mart which certainly in my experience as a class action litigator the ultimate inquiry of whether or not we prove every element that to prove and whether or not a viable defense exists as opposed to the limited questions that are supposed to be asked at the class certification of stages whether or not there's a common legal question whether or not there's a case to be resolved in a class certification. there's, of course, the wal-mart question, i talked about how
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substantively difficult it is to prove the impact cases, how you have to do regression analysis that involve experts, get your foot in the door to survive, 12b6, the initial questions that comes before the court. there's also basic procedural questions that harm a lot of plaintiffs. let me make it concrete, for a lot of plaintiffs they don't know they've been as a result of predatory loan after the statute of limitations, play out, how does this play out and under the fair housing act there's a pretty tight statute of limitations of two years, that is you have to bring your claim within two years of actually receiving the loan but the reality is that for a lot of the individual home owners in the communities, they don't know that they've actually been a victim of predatory lending until their home is foreclosed upon and the balloon interest
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rate sets in. by that time it's been more than 2 years. these are the types of hurdles that exist for individual who is have try today seek relief under the fair housing act. that's why it's so important that the city is seeking relief in this case because outside of the large government settlements, there has not really been a lot of success by private plaintiffs and finally, the final point i wanted to make is that, i know we are going getting into all of the very heavy issues of standing and luhan. my professor is very happy, but, you know, in the spirit of justice scalia, you know, i want to go back in time a little bit, not to 1789 but to the early 2000's when i was in law school, as every year, we read all of the tort cases. i taught torts myself later on and you argue whether or not
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proximate causes exist and so an and so forth. at the end of the day, there's a real person behind each of the cases and that's what always caught thinking about when i was in law school. you her about the little girl who has her intestines sucked out by pool drain. the basic elements of negligence claim. there's a little girl here and in the same way at the end of the day, the issue -- legal issues are very important and they have far reaching consequences as we talked about. at the end of the day we are talking about community and we would never forget that. there's staggering statistics behind that. by 2002 african americans were three times as likely to receive a higher risk sub prime loan
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than similarly counterparts and numbers are consistent across income. if you control for other factors, african americans still were much more likely to have sub prime loans than others. by 2008, 55% of african american mortgage holders had high risks of prime loans compare today 17% of white mortgage holders. and when all of this came crashing down, the impact on african americans like real people and real communities across america, the impact was enormous. the financial consequences of these foreclosures were devastating. high-risk sub prime loans originated 1989 and 2000 between 164 billion and $213 billion. so, you know, you might be watching this and saying, you know, whiney liberal complaining about the harm to individual people but this is a case where consequences really matter.
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so, i mean, because not only because these are real people at the center of the case but the legal doctrine in the actual case has to do with consequences. the foundation of the bank's argument is thompson and the essential question in thompson was whether or not extending liability to the plaintiff in that case would lead to an absurd practical consequence. and so the point that i and my colleagues at ldf make, there's an absurd consequence to be weighed in this particular case as well but consequences of these people having been victims and not being able to seek relief. >> so i would like steve to respond to that and in particular in the point ajmal that cities are the only -- best place to sue because private individuals find it difficult. at the end of the cato brief that you were coauthor of you said problems to have cities team up together with plaintiffs' lawyers and suggested that was a problem and
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i think cited to the tobacco litigation where plaintiffs' lawyers and cities and states successfully sued the tobacco industry. some people think it's a good thing. let me respond to ajmal but addressing the question what's wrong with cities being the drivers of litigation between it's difficult for private plaintiffs? >> the concern we raised in our brief about this kind of suit is that the city is circumventing the political process through litigation rather than having to face the voters of the city and raise taxes in the city or make the difficult decisions to cut the budget. so simple point in terms of good governance and accountability for political units like municipalities, better to pursue government goals through the governmentmental process, representative process, electoral process rather than
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through litigation in court for damages. i will say a couple of things, if i could both in response to ajmal and david on his report if that's okay and get back to the notion of standing. the reason that's important, this is no new latter day doctrine, i think. the reason it's always been important is because we want to ensure that there's a concrete case that actually tees up issues in a way that's appropriate for a court to to decide. the court is making very important determinations about what the law means and requires, we don't let courts sit like some star chamber of men or
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women deciding in their own view what they think the law should mean in abstract pronouncement. we only let the courts engage and exercise the awesome huge power they have of being under our system the last and final interpreter of what the law means when there's a concrete particularlyized dispute that's teed up in a way that makes it legitimate for the court to exercise its function. that's always been true that comes to us from the common law and the courts of equity, there have always been procedural requirements. they used to be elaborate. that's been true for the whole history of federal courts. i don't believe that the report that david summarized is accurate in describing this as some latter-day essentially
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exercise of the conservative members of the court to article 3 function. if you go all the way back, the judiciary act was unconstitutional to the extent it created cause of action that you could proceed directly in supreme court to get an injunction or a maindemus and chief justice marshal said it was unconstitutional but he didn't get to that decision until we walked through in great detail what he conclude that had marburry had standing. marburry had a legal right to his commission as justice of the peace because it had been signed by the outgoing president and he had a legal right to get injunction against the secretary of state madison to force madison to give it to him because that was a mere act once the president had signed the commission and put it on the
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table for the secretary of state, secretary of state had no discretion, no policy judgment he could make not to deliver it. therefore, murbery had a legal claim and right to get into the court and it was only then that chief justice marshal reached the hugely consequential, constitutional issue, some fast-forward to the new deal era. justice frankfurter. douglas, they all agreed in a separate opinion in coalman versus miller that there was a standing requirement that was tied to the constitution.
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justice scalia has made a great contribution by making it very clear specific concrete what the steps and elements are. you have to have a concrete particularized injury you show. you have to show it's fairly traceable to the violation you're alleging and you have to show that the claim you're bringing, if you win would redress that injury that you're claiming. these are objective clear consistent factors that the modern court applies. they replace what has been a hodgepodge of uncertain and vague doctrines that the court has applied in year's past like the political question doctrine and reasons for not reaching cases or decisions in certain -- in certain cases and i think this is going to live on after justice scalia. i think the modern court will continue to embrace these clear
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objective requirements for standing because the standing doctrine is an equal opportunity filter. it's without regard to who is the plaintiff or what is the claim. it doesn't matter if you like this particular plaintiff or not or if you want his or her claim to succeed or not, the same objective factors apply and that's hugely important because the power the court exercises when it does take cases is vast. just think of the case striking down restrictions on same-sex marriage across the country and all the states and the courts struck down the defense marriage act. that's power the court has and similarly in the obamacare case, five members of the court held that it was not supported by the inner state commerce power of congress although it was sorted
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by a tax. huge power that the court exercises in many, many cases today when it does have a proper plaintiff before the court. but think of what the court could do do if it didn't apply a standing doctrine. think of all the federal claims and arguments that we could all think of to make to challenge federal actions if any of us could get into court because we wanted to vindicate that abstract interest. this again is equal opportunity offender in terms of what you might think would be a good case or not. one of us can get into court to force director comey -- to indict hillary clinton for an alleged violation of the law potentially. think about -- and i thank jeff
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for raising the example and i'm going to steal it from you, donald trump's birther claim, allegation about president obama. if there wasn't a standing doctrine potentially one of us could get into court to try to get a declaration from the court that the president is not a legitimate president. you can -- anybody can come up with endless kinds of examples and the problem is if you have the vast power that the court can exercise as the court of last resort when it does properly take a case and you eliminate the standing doctrines that limit the cases in which the court will take, then all bets are off and the legitimacy of article 3 judicial system is going to be totally undermined. the people of the country will not -- will not allow the court
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to make pronouncements in that way in cases where the legitimacy of the exercise of the judicial power cannot be defended and so i think all members of the court today recognize that and accept these clear consistent objective factors for when the court can properly take a case. >> i think there's a lot there but i also will sort of give the panelists some notice that after response i would like everybody to give a minute or two where you think the court will give in the future and part of this turns on the other thing that's happening on november 8th, so keep in mind fairly brief answers to that but i want to hear from depac first. >> there are ways that judges have made up to kick people out of court that have nothing to do with the merits of their claims whether claims are right or wrong. these are all way that is you
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lose even before you get to make your case and i sort of couldn't disagree more with what steven said about standing. we are taking two words in the u.s. constitution cases and controversies and created that elaborate framework that, i think, is anything but clear and consistent and objective and the proof is recent case, a fascinating case, very briefly is a case about kind of who gets to define what constitutes an injury and if we think of standing serving some separation of powers rule it's really quite a cookie case because the court is asking in a situation where congress has said, you have a cause of action, we think this is an important substance tiff right, you should get into court. these kinds of people should get into court and have statutory damages, let's say, the court is then -- or was poised to before the court sort of punted and didn't decide the question after
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justice scalia died was poised to insert itself into the question of -- what i think as of a basic philosophical question that courts are not capable of deciding which is what is society regard as an injury, what do reregard as harm and that's something, you think about things like privacy, certain kinds of environmental harms, these are things that we trust the political branches, have always trusted the political branches to decide. i think that's why it was such a hard case, why the court had to give it a come of tries the first time they took the question they failed to decide in the case called first american financial versus edwards and then you had the decision where the supreme court is sort of pretending to issue an opinion, but as someone said earlier, both sides think they've won. what that really did is mask the deep ideological divisions in the court on that question and now that justice scalia is gone,
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i think, you know the court is pretty evenly split on this. it shows you how much is at stake here. it's really two very different xreeting -- competing visions about what the courts are for and whether the supreme court is sort of fundamentally opposed to litigation, the notion that litigation can solve problems. i think we talked about the wal-mart decision earlier, we stalked about standing. i think what the court has done in arbitration, all of it pails in comparison. what the court has done dusted off a law from 1980's and allow to dispute in a different forum outside of court and turned it into a device for killing claims. not just any claims.
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i think all of us in this room think that congress passes the laws and decide whether we have certain claims and even if we don't plan on suing anyone. i don't plan on suing my phone company or capable company but i like the idea that congress gets to pass laws and regulates people in the marketplace and that some people are incentivized to bring the claims and the litigation system has a regulatory effect that there's some deterrence and what the court has done is allowed companies in the fine print of contracts that nobody reads and nobody can negotiate to insert clauses that are basically an exit claws from the civil justice system so that if you imagine a worker that is ripping its workers off of the minimum wage, engaging in wage theft, imagine an employer that's paying women less than men across the board or paying african americans less than white people, those can't be
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vindicated except with complex proof where someone is brought forward to bring the claims. two decisions written by justice scalia, at&t versus concepcion, i was on the losing end of those 5-4 decisions, the effect of those decisions is that corporations get to basically write private legislation, you know, when you go and you sort of sign your i tunes contract, nobody reads that. nobody knows what's in that stuff. that's private legislation that trumps legislation that was written by congress. so that's a basically democratic problem and i think it's -- i will save what i think is going to happen next for my response to the next question but i think it's an issue i'm really looking forward to seeing some action on in the new court. >> great. so why don't we start with getting thoughts on where the courts might go next? >> i think this is going to be
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chattering by any means and echoed by some of my colleagues like all former law school professors it depends and has already been alluded to once, there is an open vacancy on the court and there is an election set to happen and those things will likely have some sort of effect on the court. we can all agree on that much. i think fundamentally for me it comes down to this, it depends upon the experience of the individual who is appointed to be the next justice. not only the life xeshes of the individual who has been appointed to be the next justice but also experience as a lawyer. why do i say that a lot of the terms that we have thrown around today all the other vague terms
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of art that lawyers deal with on a day-to-day basis, you know, to people outside of this room and to people outside of this law school, they don't mean a whole lot and the reality is as many of us know from our practices, you know, even within an individual attorney's team, different attorneys may have different understandings of those terms and so judges by their nature are interpreting vague terms if they have their own individual understandings. of course, your life experience is going to have an effect on what you view to be a plausible outcome. your life experience is going to impact to which you believe to be absurd consequence. and certainly your life experience as an attorney is going to impact the way you view each of these issues. i mean, of course, you know, i litigate class action every day and have been doing so now for a number of years, so i've been on the winning side and i've been
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on the losing side of several class actions at the class certification stage, and so, you know, unless you have practical experience in actually litigating those issues and practical experience with the arguments that the courts have accepted at the class cert -- certification stage, you're not really going to have an understanding of how these things actually play out. what i would emphasize is whoever is appointed to the court, conservative, liberal, democrat, republican, living constitutional, whatever, is someone who is actually litigated these issues, someone who -- someone who has actually lived the life experience of being on the end of actually being a victim of the things that these cases are all about. that's going to give a profound
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impact and insight into the way the individual rules. i think, that we have seen that to some extent with justice sotomayor, we are seeing the impact of somebody who actually was a prosecutor and saw how the rulings play out. i think that's the biggest failing, is that we have too many judges who fit one particular mold which a lot of us on this panel fit, you know, did fairly well in law school and appellate judges and went onto talk about these issues, you know, appellate sense or people who are law professors. but i think it's important that the person actually have real-life experience, not only as a litigator but also experience being on the end of the actual cases. >> we only have a few minutes left. >> i will be really brief,
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amanda. let's keep in mind what we are talking about here. these are made-up limits by judges on keeping people from getting into court. i don't think any current member of the court believes that. when the plaintiff dies, your case gets dismissed. justice ginsburg says it puts limit on jurisdiction. you can't be hauled into a court on the other side of the country if you don't have a sufficient number of contacts with that state. the political question, that keeps courts from deciding certain things, i don't think any member of the court think that is those doctrines are made up or lack any historical pedigree, i think what deepak and david are talk about ainvention of -- an invention of modern vintage. whether you think that's right or not, amanda asked where are we going, the court cares a lot about precedent. i don't think any time soon you're going to find that the court is going to scrap injury
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in fact, or traceability or readdressability as parts of modern standing doctrine. what you may find depending on what happens the election and who enters the court is that they may not expand those doctrines in certain ways or in novel context like in cases like spokio in order to deny plaintiffs from access to court. i think the story and the standing context may be a boring one. i think the interesting panel is, you know, what ends up happening with all of the other issues everybody raises. rule 23 and wal-mart v dukes. those i think you can see significant movement depending on who the ninth justice will be. i don't think we will sit here talking about rollback of standing law the way it's open courthouse doors. the wasn't thing that you have seen over time and this is a valuable one, a real historical
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analysis of standing and you saw it for the first time, justice thomas started to delve into it in spoi, maybe i'm the naive kumbaya in the room, but don't assume it's an ideological story, justice thomas for him there maybe a difference and standing maybe broader for private rights than public rights. so i do think you will see something like justice thomas that doesn't come from the background that you talk about, dig into the history of this and maybe start to make a case one way or the other for what standing should look like in a way that the other justices haven't and i think that'll be a really interesting debate to kind of play out at the court and we will see. i wouldn't assume it's going to follow a conservative-liberal narrative. >> can i agree with pretty yuch everything you said.
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when i say it's all made up -- >> you can stop there. [laughter] >> the law is made up and we all make it up as we go along. do i think that you're largely right and the court has a lot of respect and so the big change is going to be -- there aren't going to be aggressive grants that are seek to go push the envelope in a lot of different areas. do i think that on arbitration the story may be different. there's not a big role to play there. after all, it's a statute and contracts are made in reliance on it and so i think the court is not going to just do a 180. there's an interesting branch dialing going on where the obama administration has been promulgate and the rules are going out and they're being challenged, there was just a hearing in mississippi today, there was a rule struck down in beumont, texas last week and all the cases are going to start heading off to the court.
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there's already one head of cases in the national relations board and whether keeping employees out from class actions is an unfair labor practice and that seems to me that the obvious vehicle for cutting back on what the court has done in this area without overruling any of the decisions. >> i think the one thing that i'm actually capable of doing usually any way is ending on time. so we are going to end now on the kumbaya we all agree comment by deepack. i want to thank our panelists, thanks to our host and i'm sure there will be questions after we break up. oh, sorry. [applause] [inaudible conversations] >> please join me in thanking our wonderful moderator and our panelists.
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[applause] >> the just senate is about to gavel in. no legislative business is expected until next week. the senate has been in recess until after the elections. live coverage of the u.s. senate the presiding officer: the the clerk will read a communication to the senate. the clerk: washington, d.c., november 7, 2016. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable david perdue, a senator from the state of georgia, to perform the duties of the chair. signed: orrin g. hatch, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 10:00 a.m. on thursday, november 10, 2016.


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